Knowledge and approval - When is a will suspicious?
Chea and Samphan had appealed (in grounds totalling 371) to the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) Supreme Court against their 2014 convictions. The court, which acts as both appellate chamber and court of final instance, consists of four Cambodian and three international judges and requires any decision to be agreed by at least 5 of those judges. Following extensive written and oral submissions, the court announced its decision on 23 November 2016 [found here. In its 520 page judgment, whilst the Supreme Court reversed some of the convictions entered by the Trial Chamber against Chea and Samphan, the scale and nature of the offending behaviour found proved did not dissuade the court from affirming both defendants’ life sentences.
What is the ECCC?
The ECCC is a specialist body set up to prosecute senior leaders of the Democratic Kampuchea (“the Khmer Rouge”). The Khmer Rouge operated in Cambodia between 17 April 1975 and 7 January 1979 under leader “brother number one” Saloth Sar (Pol Pot). During the regime’s 3 year rule it is believed that at least 1.7m individuals died from starvation, torture, execution, disease and the effects of forced labour.
In 2001 Cambodia’s National Assembly endorsed a law designed to create a tribunal for prosecuting individuals who were said to have committed crimes during the Khmer Rouge regime. Two years later in June 2003, through an agreement reached between the UN and the Royal Government of Cambodia, the role of the international community in the ECCC’s operation was established. The tribunal’s remit was also made clear: to investigate crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognised by Cambodia, committed by senior leaders of and those most responsible for the Khmer Rouge’s actions during the period 17 April 1975 and 6 January 1979.
The ECCC’s progress
The ECCC has completed two of its 6 key trials. Its first case (‘Case 001’) concerned Kaing Guek Eav (“Duch”), the former Chairman of the Khmer Rouge S-21 Security Centre in Phnom Penh. Duch was found guilty of crimes against humanity and grave breaches of the 1949 Geneva Convention and on 3 February 2012 was sentenced to life imprisonment.
Its second case, ‘Case 002’, involves the last two remaining senior Khmer Rouge leaders and subjects of this recent appeal: Nuon Chea (“brother number 2”) and Khieu Samphan (former Head of State). Unlike Case 001 however, the breadth of the allegations levied against Chea and Samphan caused the Trial Chamber to sever the initial indictment. Whilst the Supreme Court’s decision now concludes Case 002/01, the two continue to face their second trial, Case 002/02, which focuses upon the genocide of ethnic minorities, forced marriages, internal purges and crimes committed at the Tram Kok cooperative and Krang Ta Chang security centre, where 15,000 are believed to have been killed.
ECCC – past and future
The ECCC has faced a considerable number of criticisms throughout its lifetime: criticisms over the delay in bringing it to fruition in the first place, the cost of the operation (3 convictions at a cost of over $200million), the limited number of indictments laid and a failure to progress prosecutions quickly. A product of the delay has been the failure to secure convictions against Case 002 co-defendants Ieng Sary (“brother number 3”) and his wife Ieng Thirith (both Case 002 defendants). Ieng Sary died part-heard in 2014 and Ieng Thirith was ruled unfit to stand trial in 2011 (and is now deceased). The case against another defendant Sou Met, indicted in Case 003, was also closed following his death in 2014.
Prosecutions of this kind do take time simply because of the breadth, legally and factually, of the issues that need to be addressed. Particular to the ECCC however is the real and constant threat of financial instability. The court is reliant on domestic and international donations to keep it working and when those dry up, the court stalls. Considering the costs already incurred in Cases 001 and 002 and the ECCC’s planned future case load, it is clear that vigorous fundraising ventures and careful budgeting is the only way the ECCC is going to be able to be able to continue administering the rule of law.
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